Court No. - 50 Case :- CRIMINAL REVISION No. - 2655 of 2010 Petitioner :- Harihar Tiwari & Others Respondent :- State Of U.P. & Another Petitioner Counsel :- Vinod Kumar Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J.
This revision has been filed against the order dated 3.7.10 passed by the
District & Sessions Judge, Jaunpur whereby S.T. No.216/08, State Vs.
Harihar and others pending in a vacant court was recalled and was sent for
disposal to the ADJ/FTC No.5, Jaunpur.
Heard Mr. Vinod Kumar Srivastava, learned counsel for the revisionists,
learned AGA and perused the record.
It has been argued by Mr. Srivastava that without affording an opportunity
of hearing to the revisionists the case could not be transferred from one court
to another by the Sessions Judge. In support of the argument reliance has been
placed on the decision of the Apex Court reported in 1999 (1) JIC 776 (SC),
Nirmal Singh Vs. State of Haryana and the decision of the Allahabad High
Court reported in 2006(2) JIC 406 (All), Krishan Pal and others Vs. State
of U.P. and another. In 1999 (1) JIC 776 (SC), Nirmal Singh Vs. State of
Haryana it has been held by the Supreme Court that without giving notice to
the revisionists there was no justification to transfer a case from one court to
another. The same view was expressed by the Allahabad High Court in
2006(2) JIC 406 (All), Krishan Pal and others Vs. State of U.P. and
another.
I do feel that both these cases do not help the revisionists. In the case of the
Supreme Court Section 407, Cr.P.C. was in question while in the case of the
Allahabad High Court Section 408, Cr.P.C. was in question. The impugned
order is, definitely, not an order under Section 407 and 408, Cr.P.C. It is an
order under Section 409, Cr.P.C. which empowers the Sessions Judge to recall
a case from one court and to transfer it to the other court. However, this
provision prohibits the Sessions Judge from recalling a case from a court if
the proceedings have started, but this provision would not apply when the
case was heard by a court and thereafter, it became vacant. In that situation,
Section 409(1) would come into play which gives power to the Sessions
Judge to recall a case from the vacant court and to transfer it to another court
within his jurisdiction and that is what exactly the Sessions Judge had done in
the present case.
In view of the above, I do feel that inspite of the fact that the notice of
recall was not given to the revisionists it has caused no prejudice to them and
the court of Sessions Judge was perfectly justified by virtue of Section 409(1),
Cr.P.C. to transfer the concerned case from one court to another. Therefore,
the order of the Sessions Court is well in accordance with law calling for no
interference.
Revision is dismissed.
Order Date :- 19.7.2010
T. Sinha